1

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Michael J. Niborski (State Bar No. 192111)
mniborski@pryorcashman.com
Darius K.C. Zolnor (State Bar No. 248686)
dzolnor@pryorcashman.com
PRYOR CASHMAN LLP
1801 Century Park East, 24th Floor
Los Angeles, California 90067-2302
Tel: (310) 556-9608 / Fax: (310) 556-9670

Ilene S. Farkas (admitted pro hac vice)
ifarkas@pryorcashman.com
Leighton E. Dellinger (pro hac vice application forthcoming)
ldellinger@pryorcashman.com
PRYOR CASHMAN LLP
7 Times Square
New York, New York 10036-6569
Tel: (212) 326-0108 / Fax: (212) 798-6306

Attorneys for Defendants
KANYE WEST, UMG RECORDINGS, INC., ROC-A-FELLA RECORDS, LLC,
THE ISLAND DEF JAM MUSIC GROUP; CAROLINE DISTRIBUTION,
ELECTRONIC ARTS, INC., WARNER BROS. ENTERTAINMENT INC., STONES
THROW RECORDS, and NBCUNIVERSAL MEDIA, LLC


UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

Case No. CV 13-02449 BRO (JCx)

REPLY IN SUPPORT OF MOTION
FOR JUDGMENT ON THE
PLEADINGS AS TO PLAINTIFFS’
FOURTH AMENDED COMPLAINT

Hearing:
Date: August 5, 2014
Time: 8:30 a.m.
Courtroom: 14

Objections to Extraneous Material;
Supplemental Declaration of Ilene S.
Farkas; and Supplemental Notice of
Lodging filed concurrently



TRENA STEWARD, et al.,

Plaintiffs,
v.

KANYE WEST, et al.,

Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 1 of 18 Page ID #:1801


i
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF CONTENTS
TABLE OF AUTHORITIES ..................................................................................... ii
I. PRELIMINARY STATEMENT ....................................................................... 1
II. ARGUMENT ..................................................................................................... 2
A. This Court Can Determine Non-Infringement on This Motion ................. 2
1. Plaintiffs Fail to Identify the Particular Work Infringed ..................... 3
2. Plaintiffs Fail to Allege Infringement as a Matter of Law ....................... 4
a. The Snippets Are Not Protectable ................................................ 5
b. Plaintiffs Have Also Failed to Allege Actionable Copying. ........ 6
c. Plaintiffs’ Remaining Argument Should Be Rejected ................. 8
B. Plaintiffs Concede They are Not Joint Authors.......................................... 9
C. Plaintiffs’ Declaratory Relief Claims are Time Barred ............................ 10
D. Statutory Damages And Attorneys’ Fees Are Unavailable ...................... 11
III. CONCLUSION ................................................................................................ 13


Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 2 of 18 Page ID #:1802

ii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
TABLE OF AUTHORITIES
CASES PAGE(s)
Aalmuhammed v. Lee,
202 F.3d 1227 (9th Cir. 2000) ....................................................................... 10
Amini Innovation Corp. v. McFerran Home Furnishings, Inc.,
2014 U.S. Dist. LEXIS 13342 (C.D. Cal. Jan. 31, 2014) ............................... 7
Arthur Rutenberg Homes v. Drew Homes, Inc.,
29 F.3d 1529 (11th Cir. 1994) ....................................................................... 12
Boisvert v. Wai Fun Li,
2014 U.S. Dist. LEXIS 9152 (N.D. Cal. Jan. 24, 2014) ................................. 3
DuckHole Inc. v. NBC Universal Media LLLC,
2013 U.S. Dist. LEXIS 157305 (C.D. Cal. Sept. 6, 2013) .............................. 3
Feist Publications, Inc. v. Rural Telegraph Serv. Co.,
499 U.S. 340 (1991) ........................................................................................ 5
Fisher v. Dees,
794 F.2d 432 (9th Cir. 1986) ........................................................................... 8
Forlenza v. AT&T,
2004 U.S. Dist. LEXIS 29549 (C.D. Cal. Apr. 12, 2004) ............................... 8
Garcia v. Google, Inc.,
743 F.3d 1258 (9th Cir. 2014) ................................................................... 9, 10
Lorenzo Pryor, et al. v. Wyclef Jean,
Case No. 13-02867 (C.D. Cal. Oct. 28, 2013) .............................................. 12
Marshall v. Huffman,
2010 U.S. Dist. LEXIS 134334 (N.D. Cal. Dec. 9, 2010) .............................. 4
Metropolitan-Goldwyn-Mayer, Inc. v. American Honda Motor Co.,
900 F. Supp. 1287 (C.D. Cal. 1995) ........................................................ 3, 4, 5

Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 3 of 18 Page ID #:1803

iii
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CASES PAGE(s)
Newton v. Diamond,
204 F. Supp. 2d 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir.
2003) ............................................................................................................ 6, 7
Newton v. Diamond,
388 F.3d 1189 (9th Cir. 2003) ..................................................................... 7, 8
Ringgold v. Black Entertainment TV,
126 F.3d 70 (2d Cir. 1997) .............................................................................. 4
Salestraq America, LLC v. Zyskowski,
635 F. Supp. 2d 1178 (D. Nev. 2009) ........................................................... 12
Santa-Rosa v. Combo Records,
471 F.3d 224 (1st Cir. 2006) ......................................................................... 10
Seven Arts Filmed Entertainment, Ltd. v. Content Media Corp. PLC,
733 F.3d 1251 (9th Cir. Cal. 2013) ............................................................... 10
Silva v. Sunich,
2006 U.S. Dist. LEXIS 98021 (C.D. Cal. Sept. 6, 2006) .............................. 10
Stewart v. Abend,
495 U.S. 207 (1990) ...................................................................................... 11
Three Boys Music Corp. v. Bolton,
212 F.3d 477 (9th Cir. 2000) ........................................................................... 5
TufAmerica, Inc. v. Diamond,
968 F. Supp. 2d 588 (S.D.N.Y. 2013) ............................................................. 7
VMG v. Salsoul, LLC v. Ciccone,
2013 U.S. Dist. LEXIS 184127 (C.D. Cal. Nov. 18, 2013) .............. 6, 7, 8, 11
Worth v. Selchow & Righter Co.,
827 F.2d 569 (9th Cir. 2003) ........................................................................... 7

Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 4 of 18 Page ID #:1804

iv
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CASES PAGE(s)
Zuill v. Shanahan,
80 F.3d 1366 (9th Cir. Cal. 1996) ................................................................. 10
STATUTES PAGE(s)
17 U.S.C. § 101 ........................................................................................................ 11
17 U.S.C. § 114(a) ..................................................................................................... 4
17 U.S.C. § 114(g)(2)(e) ............................................................................................ 8
17 U.S.C § 408(a) .................................................................................................... 12
TREATISES PAGE(s)
2 Nimmer & Nimmer, Nimmer on Copyright, § 7.16[B][2][c] .............................. 12
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 5 of 18 Page ID #:1805


1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defendants respectfully submit this Reply Memorandum of Points and Authorities in
support of their Motion for Judgment on the Pleadings pursuant to Rule 12(c) (the
“Motion”), filed June 16, 2014.
I. PRELIMINARY STATEMENT
Defendants’ Motion
1
is based on the isolated, detached snippets from Plaintiffs’
Recordings, all of which this Court has already held are unprotectable on a compositional
level. The snippets last for a fraction of a second and each is less than .001% of Plaintiffs’
Recording(s) as a whole. Plaintiffs ignore these critical and undisputed facts because they
are devastating to their arguments on the issue of protectability. Plaintiffs also fail to
distinguish Defendants’ dispositive authority, nor do they cite any authority supportive of
their positions.
Rather, Plaintiffs’ opposition depends on their bald and self-serving allegations that
David Pryor’s “vocal performance” in the entire introduction to Plaintiffs’ Recordings is
“distinctive.” However, the mere distinctiveness of a voice does not transform a brief
recording of unprotectable words into protectable expression.
2
Plaintiffs desperately hope
that this Court will decline to listen to the fleeting portions of Plaintiffs’ Recordings at issue
– snippets so miniscule and insignificant that neither Pryor nor any of the Plaintiffs herein
ever detected a single one of them for decades, in some cases, until they were directed to a
YouTube video, purportedly dedicated solely to “finding” claimed samples in music.
3
But
the Court need not accept Plaintiffs’ conclusory allegations of “distinctiveness.” Defendants
have attached the snippets at issue to their papers, so that this Court can determine that they

1
Capitalized terms herein are used as defined in the Motion.
2
Indeed, Plaintiffs’ “expert” admits “every human voice is different.” (Stewart Rpt., ¶7).
3
Plaintiffs admit that they only discovered their claims by stumbling upon a video posted
on YouTube by someone who calls himself “DJ Funktual” entitled, “Top 10 Samples in
Hip Hop History Part XL.” (Slack Decl., ¶ 10). Without Mr. Funktual’s apparent raison
d’etre, Plaintiffs would have never discovered a single one of these alleged samples because
they are, even to Pryor and his own children, undetectable.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 6 of 18 Page ID #:1806

2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
are neither qualitatively or quantitatively significant as a matter of law.
Defendants are not suggesting that a vocal performance can never be protectable. But
the law of copyright is quite clear: to state an actionable infringement claim, any alleged
taking must be (i) substantial, and (ii) of protectable expression. A recording of a word or
two that has been plucked from an arguably copyrightable work loses any distinctive
qualities that may exist in the work as a whole. Moreover, if the alleged taking of a fraction
of a second of a recording which, in turn, is less than 1/1000 of a percent of Plaintiffs’
Recording(s) as a whole passes the “substantial” test, then it is difficult to imagine what
would fail that test.
This Court should also dismiss Plaintiffs’ declaratory judgment claims because (a)
there is nothing protectable at issue; (b) Plaintiffs concede they are not “joint authors;” and
(c) these claims are time barred.
Finally, this Court may now rule, without leave to amend, that no statutory damages
or attorney’s fees may be recovered for any surviving claims. Plaintiffs concede that
statutory damages and attorney’s fees are not available for any alleged infringement of the
Gold Future Recording. And, since the Private Stock Recording is a “derivative work” of
the Gold Future Recording, and it is undisputed that Plaintiffs are not suing on the elements
added in this derivative work, Plaintiffs cannot avoid the simple fact that Plaintiffs must
have a valid and timely registration to sue on and seek statutory damages and attorney’s
fees for infringement of the snippets, which are indisputably part of the original, Gold
Future Recording and owned by the owner of that recording. By Plaintiffs’ admissions, no
such remedies can be sought here.
II. ARGUMENT
A. This Court Can Determine Non-Infringement on This Motion
This Court need not consider any matters outside the pleading on this motion,
because the snippets of Plaintiffs’ Recording(s) at issue are incorporated by reference in the
4AC. Plaintiffs concede that this Court can listen to Plaintiffs’ Recordings and determine
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 7 of 18 Page ID #:1807

3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the issues presented on this motion. Indeed, no amount of discovery will change the facts
that (1) the snippets are merely recordings of unprotectable words or short phrases
appearing in the introduction of Plaintiffs’ Recordings; (2) each is a fraction of a second in
duration; (3) none of them is repeated in Plaintiffs’ Recordings nor appears as the title of
Plaintiffs’ Recordings; and (4) each is less than .001% of the total duration of Plaintiffs’
Recordings. Plaintiffs’ attempt to manufacture factual issues by submitting extraneous
“evidence” is improper and unnecessary for the determination of the issues before the
Court.
4
Boisvert v. Wai Fun Li, 2014 U.S. Dist. LEXIS 9152, at *10 (N.D. Cal. Jan. 24,
2014); DuckHole Inc. v. NBC Universal Media LLLC, 2013 U.S. Dist. LEXIS 157305, at
*13 (C.D. Cal. Sept. 6, 2013). See cases cited in Defendants’ Motion, pp. 8-10.
Plaintiffs’ opposition ignores the controlling law of this Circuit, namely, “[a] claim
for copyright infringement requires that the plaintiff prove (1) its ownership of the copyright
in a particular work, and (2) the defendant’s copying of a substantial, legally protectable
portion of such work.” Metro-Goldwyn-Mayer, Inc. v. American Honda Motor Co., 900
F. Supp. 1287, 1292 (C.D. Cal. 1995) (emphasis supplied) (citation omitted). Plaintiffs’
4AC fails on several levels.
1. Plaintiffs Fail to Identify the Particular Work Infringed
In the 4AC and their opposition to the instant motion, Plaintiffs studiously avoid
identifying which of the Plaintiffs’ Recordings allegedly was infringed by any of
Defendants’ Recordings, and instead refer generically to “Pryor’s recorded vocal
performance.”
5
Plaintiffs’ failure to identify the “particular work” infringed is a critical

4
Plaintiffs have submitted various self-serving declarations and a supposed “expert” report
of the often-criticized Dr. Anthony Stewart. As this Motion does not present matters outside
the pleadings, the Court should decline to convert this Motion into a summary judgment
motion. Defendants respectfully refer the Court to their Objections to this evidence. If the
Court decides to convert this Motion into a summary judgment motion, that motion should
be denied pursuant to Rule 12(d) as Defendants have not had the opportunity to depose Dr.
Stewart or otherwise present pertinent material to oppose Plaintiffs’ arguments.
5
This is not inadvertent – Plaintiffs know that, should any of their claims survive dismissal,
serious issues exist regarding ownership, registration and access, depending on which of
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 8 of 18 Page ID #:1808

4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
omission. Metro-Goldwyn-Mayer, 900 F. Supp. at 1292. Indeed, “in order to state a claim
for copyright infringement of a sound recording, the complaint must allege that the actual
sounds fixed in the copyrighted sound recording were duplicated in the infringing song.”
Marshall v. Huffman, 2010 U.S. Dist. LEXIS 134334, at *11 (N.D. Cal. Dec. 9, 2010); see
also 17 U.S.C. §114(a). Plaintiffs’ failure to identify the “particular work” infringed alone
mandates dismissal of Plaintiffs’ claims.
6

2. Plaintiffs Fail To Allege Infringement As A Matter of Law
Plaintiffs devote a substantial amount of their opposition arguing that Defendants
have supposedly “conceded” copying,
7
and that substantial similarity is “not an element of a
claim for copyright infringement” but is, rather, limited to a fair use defense. (Pl. Opp. at 7).
These nonsensical distractions are addressed at length in Defendants’ Opposition to
Plaintiffs’ Cross-Motion dated June 23, 2014, which is incorporated herein.
8


Plaintiffs’ Recordings was allegedly “copied.” Plaintiffs intend to create a moving target to
keep some claim alive, but Rule 8 requires otherwise.
6
If the Court dismisses Plaintiffs’ claims on this basis, leave to amend should not be
granted for the reasons stated infra.
7
Defendants are merely conceding that Plaintiffs have sufficiently alleged copying (which
is a fact-intensive issue) for purposes of this Rule 12 Motion since Plaintiffs’ claims can and
should be dismissed based on the failure to allege actionable copying, which can be
determined at this stage as a matter of law. Should any claims survive dismissal, Defendants
will of course dispute copying.
8
Plaintiffs’ confusion between “substantial similarity” used by Courts to address copying
versus actionable infringement is addressed in Defendants’ Opposition to Plaintiffs’ Cross
Motion. Indeed, this (perhaps feigned) confusion was not cured by the very cases cited by
Plaintiffs, such as Ringgold, which discussed at length that “care must be taken to recognize
that the concept of ‘substantial similarity’ itself has unfortunately been used to mean two
different things. On the one hand, it has been used as the threshold to determine the degree
of similarity that suffices, once access has been shown, as indirect proof of copying; on the
other hand, ‘substantial similarity’ is more properly used, after the fact of copying has been
established, as the threshold for determining that the degree of similarity suffices to
demonstrate actionable infringement.” Ringgold v. Black Entm’t TV, 126 F.3d 70, 74 (2d
Cir. 1997) (citations omitted).
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 9 of 18 Page ID #:1809

5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
a. The Snippets Are Not Protectable
Turning to the proper analysis of infringement claims, Plaintiffs have not and cannot
allege that any of Defendants’ Recordings copied “a substantial, legally protectable
portion of [Plaintiffs’] work.” Metro-Goldwyn-Mayer, 900 F. Supp. at 1292 (emphasis
supplied) (citation omitted); see also Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 361 (1991); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).
Plaintiffs ignore this Court’s prior holding – and the host of other dispositive
holdings – that “there is no originality” in the words and short phrases at issue, and that
“Plaintiff[s] may not assert copyright infringement based solely on the use of these lyrical
phrases.” (Docket 48). They argue, instead, that Pryor’s “distinctive voice and his artistic
interpretation of those lyrics” warrants protection. First, Plaintiffs’ analysis predominantly
relies upon Pryor’s “performance” of the whole introduction, when they refer to the
supposed “level of musicality.” There is no meaningful analysis of the individual snippets
themselves or any credible argument that Pryor’s supposed performance of, e.g., the single
word “step” or the phrase “get down” on their own are “distinctive” – nor could there be.
Indeed, even when Plaintiffs argue that the “get down” snippet is “distinct,” they are
compelled to quote the longer phrase – “get down with the bus stop”, acknowledging that
the short fragment “get down,” on its own, is not meaningful or significant. (Pl. Opp. 12).
9

Plaintiffs’ reliance on the recent decision by Judge Lew in Pryor v. Warner/Chappell,
which denied a motion to dismiss based on the alleged use of the “get down” snippet from
Plaintiffs’ Recordings, is sorely misplaced. First, none of the Defendants here is a party to
the Warner case, and none of Defendants’ Recordings is at issue there. Second, in finding
that the “get down” snippet was sufficiently original, Judge Lew focused on the introduction
as a whole – indeed, the decision quotes the entire introduction in its analysis and then relies
upon Plaintiffs’ bald allegations of Pryor’s “signature” voice – and failed to conduct the

9
Plaintiffs also cite as an example the song “Super Duck Breaks” and allege that the
“entire introduction” was sampled. But that song is not one of Defendants’ Recordings at
issue on this motion.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 10 of 18 Page ID #:1810

6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
required independent analysis of the snippets alone.
Moreover, Judge Lew ignored Newton’s holding and instead relied upon two
Southern District of New York cases, Santrayall and Tin Pan Apple, both of which relied
upon “unusual words or sounds,” repeated “syncopated rhythms” and “musical and lyrical
phrases” in finding sufficient originality – not simply a recording of the generic
unprotectable words or short phrases at issue here. Newton v. Diamond, 204 F. Supp.2d
1244, 1244 (C.D. Cal. 2002), aff’d, 349 F.3d 591 (9th Cir. 2003). It also appears that Judge
Lew was unaware of this Court’s prior holding that the short phrase at issue (i.e., “get
down”) is unprotectable as a matter of law.
This Court can hear for itself that any artistic expression that arguably may exist in
the introduction as a whole is lost once 1 or 2 words are plucked from it and heard in
isolation. Indeed, they become unrecognizable, which likely explains why neither Pryor nor
any of the Plaintiffs identified any of the allegedly infringing uses when Defendants’
Recordings were released.
10

Plaintiffs fail to cite any authority holding that a recording of one spoken word or a
short generic phrase can be protectable. Rather, Plaintiffs cite to cases involving the
combination of “unusual words or sounds,” and musical components, which this Court
already has held is not at issue here, and similarly inapposite cases where over 10 to 20
times the amount of material was allegedly copied. As in VMG, where the recorded
“horn hit” at issue lasted for a fraction of a second, the ½ second snippets here lack
sufficient originality as a matter of law.
b. Plaintiffs Have Also Failed to Allege Actionable Copying
Actionable, or substantial, copying is “measured by considering the qualitative and

10
Plaintiffs’ attempt to foist the ½ second spoken snippets into protecable expression by
calling Pryor’s performance “rapping” and “ahead of his time,” and further suggesting that
Pryor “laid the foundation for future rap music as we know it,” is absurd and overly
desperate. The spoken word introduction is hardly a technique original to Pryor, nor did it
“lay the foundation” for anything. See, e.g., the introductions to Chubby Checker’s 1961
hit, “Let’s Twist Again” or the 1963 Angel’s hit, “My Boyfriend’s Back,” to name a few.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 11 of 18 Page ID #:1811

7
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
quantitative significance of the copied portion in relation to the plaintiff’s work as a whole.”
Newton v. Diamond, 388 F.3d 1189, 1195 (9th Cir. 2003) (emphasis added) (citing Worth
v. Selchow & Righter Co., 827 F.2d 569, 570 n. 1 (9th Cir. 1987)). Plaintiffs’ avoidance of
this test for infringement was purposeful.
Plaintiffs concede (as they must) that the snippets are ½ a second (at most) in
duration – not even one thousandth of a percent of Plaintiffs’ Recording(s) as a whole.
Plaintiffs do not cite to a single case that supports the notion that such a miniscule portion of
a copyrighted work is quantitatively significant, nor do they distinguish any of the cases
cited by Defendants on this point – cases in which the samples at issue were quantitatively
longer, yet still held to be insignificant. See, e.g., VMG v. Salsoul, LLC v. Ciccone, 2013
U.S. Dist. LEXIS 184127, at *27 (C.D. Cal. Nov. 18, 2013); Newton, 204 F. Supp. 2d at
1258; TufAmerica, Inc. v. Diamond, 968 F. Supp. 2d 588, 605-606 (S.D.N.Y. 2013).
Plaintiffs concede that the snippets are “meager and fragmentary” compared to Plaintiffs’
Recordings as a whole.
Plaintiffs also fail to address Defendants’ qualitative analysis. Plaintiffs concede that
no musical elements appear in the snippets. Plaintiffs’ bare conclusion that Pryor’s speaking
voice as recorded in Plaintiffs’ Recordings is “distinctive” and his “signature ” is simply
insufficient on this motion when the Court can consider the snippets before it. Moreover,
such a broad statement – while possibly relevant if the entire introduction was taken –
ignores the fleeting nature of the word or two plucked from the entire introduction and the
loss of any recognizability or distinctiveness in these ½ second sounds. To find otherwise
would violate the established maxim de minimis non curat lex – “the law does not concern
itself with trifles.” Newton, 388 F.3d at 1193 (citation and quotations omitted).
11


11
Despite Plaintiffs’ attempt to minimize Newton’s holding, Brocade and Amini do not say
Newton is “unclear.” Rather, what they note as “unclear” is whether de minimis can be a
stand-alone affirmative defense or “whether it simply ‘highlights [Plaintiff’s] obligation to
show that the use must be significant enough to constitute infringement.’” Amini Innovation
Corp. v. McFerran Home Furnishings, Inc., 2014 U.S. Dist. LEXIS 13342, at *9 (C.D. Cal.
Jan. 31, 2014) (citations omitted). Defendants are not moving under their de minimis
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 12 of 18 Page ID #:1812

8
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Although Plaintiffs rely on the non-binding Warner decision, no quantitative analysis
was performed. Judge Lew merely acknowledged that the snippet was a ½ of a second, but
then failed to complete its analysis or make any determination of quantitative significance.
See, e.g., VMG, 2013 U.S. Dist. LEXIS 184127, at *34-35 (“The Court must assess the
qualitative and quantitative significance of the copied portion in relation to Plaintiff's work
as a whole.”) (emphasis added); Forlenza v. AT&T, 2004 U.S. Dist. LEXIS 29549, at *6
(C.D. Cal. Apr. 12, 2004) (same).
Then, the Warner decision simply held that plaintiffs had sufficiently alleged, “albeit
just barely,” the qualitative import of the snippet at issue (“get down”) based solely on the
Plaintiffs’ allegation that “one can hear David Pryor’s signature voice saying, “‘Get down
with the Bus Stop!’” Nothing in the decision suggests that the Warner court actually
listened to the snippet at issue or performed the necessary qualitative analysis. Indeed, even
when referring to the phrase at issue, the Warner court erroneously referred to it as a
complete “sentence” – “Get down with the Bus Stop!” – and not the actual, two-word
snippet at issue, i.e., “get down.” Defendants respectfully submit that this Court must
examine the snippets; and, when it does, it can and should determine that they are neither
quantitatively nor qualitatively significant – rather, they are “so meager and fragmentary
that the average audience would not recognize the appropriation.” Newton, 388 F.3d at
1193 (quoting Fisher v. Dees, 794 F.2d 432 (9th Cir. 1986)).
c. Plaintiffs’ Remaining Argument Should Be Rejected
Plaintiffs’ remaining argument seems to suggest that the Court should not determine
whether the alleged copying here was actionable because, had Defendants hired (the
deceased or incapacitated) Pryor as a “non-featured vocalist” on Defendants’ Recordings,
he would have been entitled to royalties under 17 U.S.C. § 114(g)(2)(C). Plaintiffs then

affirmative defense, Defendants are moving based upon Plaintiffs’ failure to allege
actionable infringement as a matter of law, which is exactly what Brocade and Amini (and
Newton) hold is permissible.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 13 of 18 Page ID #:1813

9
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
make the leap that, because of this supposed statutory entitlement, as a matter of law, the
snippets are protectable. Plaintiffs’ citation to this statute is a red herring. Moreover, their
suggestion that this Court should abandon the law of the Ninth Circuit (and many others) –
that “no legal consequences will follow from [alleged copying] unless the copying is
substantial” and that “the substantiality requirement applies throughout the law of
copyright, including cases of music sampling, even where there is a high degree of
similarity” – should be rejected. Newton, 388 F.3d at 1193-95 (emphasis added) (citations
omitted). In effect, Plaintiffs argue – without any authority – that any portion of any vocal
performance on any recording is protectable, which is precisely the doctrine that courts of
this Circuit and others have expressly rejected in declining to follow the Sixth Circuit’s
“bright line” rule in Bridgeport.
12
This frivolous argument should be rejected.
13

B. Plaintiffs Concede They are Not Joint Authors
Plaintiffs concede that they have no claim for joint authorship for any of Defendants’
Recordings at issue. Instead, Plaintiffs suggest that, pursuant to Garcia v. Google, Inc., 743
F.3d 1258, 1264 (9th Cir. 2014), they have a “beneficial ownership” in each of Defendants’
Recordings simply because Pryor’s vocal performance “may” be protectable. First, even the
Garcia Court pointed out that the “contribution” at issue must, of course, be “independently
copyrightable” and that is not the case here. Garcia, 743 F.3d at 1263 (The plaintiff’s
“contribution” in Garcia was an acting performance and lasted over 10 times the duration of
the snippets at issue here). Garcia simply provides, at best, that Plaintiffs may have a

12
Not surprisingly, Plaintiffs have not cited, and Defendants were unable to find, any court
decision that cites to or relies upon this statute, much less one that holds that this statute
overrules the requirement that any alleged copying must be substantial. Plaintiffs have also
abandoned their previous reliance on Bridgeport now that it was rejected, once again, by
Judge Lew in the Warner decision.
13
Plaintiffs’ reliance on the inapposite Ringgold case to support this argument is also
misplaced. That case dealt with the use of one visual work in another, and focused on the
issue of whether the plaintiff’s poster was visible, or “observable” in defendant’s television
show, which is relevant only with respect to visual works. But since Plaintiffs rely so
heavily on Ringgold, it is worth noting that it did go through a qualitative and quantitative
analysis to determine whether actionable copying occurred.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 14 of 18 Page ID #:1814

10
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
copyright interest in “that contribution” – not, as Plaintiffs argue, in Defendants’ Recordings
as a whole. As the Garcia court noted, “Garcia doesn't claim a copyright interest in
‘Innocence of Muslims’ itself; far from it.” Garcia, 743 F.3d at 1262. Accordingly,
Plaintiffs’ reliance on Garcia is misplaced.
The Garcia Court held that (as Defendants showed) the standard for joint authorship
in an entire work is articulated in Aalmuhammed. Garcia, 743 F.3d at 1264. In fact, the
Garcia Court anticipated that some would rely on its decision to try to assert authorship in
entire works, and made clear that the Aalmuhammed standard of joint authorship applies:
“It makes sense to impose heightened requirements on those who would leverage their
individual contribution into ownership of a greater whole[.]” Garcia, 743 F.3d at 1264.
Plaintiffs concede that they are not joint authors, and their reliance on Garcia is
misleading and misplaced. Their declaratory judgment claims should be dismissed.
C. Plaintiffs’ Declaratory Relief Claims are Time Barred
Plaintiffs’ “co-authorship” claims are also time barred. It is undisputed that each of
these recordings was released more than three years prior to the commencement of this
action. It is also undisputed that the liner notes and credits released with these recordings
did not credit Pryor, and that neither Pryor nor Plaintiffs were ever paid royalties in
connection with the five songs at issue. Plaintiffs concede that the failure to pay royalties
and the failure to credit the claimant constitute plain and express repudiation of joint
authorship. See, e.g., Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000); Santa-
Rosa v. Combo Records, 471 F.3d 224, 228 (1st Cir. 2006) Silva v. Sunich, 2006 U.S. Dist.
LEXIS 98021, at *20-21 (C.D. Cal. Sept. 6, 2006). Thus, Plaintiffs’ declaratory relief
claims are time barred.
14


14
Plaintiffs argue that the limitations period does not begin to run until plaintiffs asserted
their claim and that claim was repudiated by defendants, relying upon Seven Arts Filmed
Entm’t, Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254-1255 (9th Cir. Cal. 2013)
and Zuill v. Shanahan, 80 F.3d 1366, 1368 (9th Cir. Cal. 1996). These holdings have been
strictly limited to circumstances in which a plaintiff and defendant are in a “close
relationship.” Seven Arts , 733 F.3d at 1256.
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 15 of 18 Page ID #:1815

11
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
D. Statutory Damages And Attorney’s Fees Are Unavailable
Remarkably, Plaintiffs still refuse to identify which of Plaintiffs’ Recordings was
allegedly infringed. However, based on well-settled law and Plaintiffs’ own admissions,
Plaintiffs cannot recover statutory damages or attorney’s fees here.
First, Plaintiffs concede that statutory damages and attorney’s fees are not
recoverable for any alleged infringement of the Gold Future Recording, because the Gold
Future Recording was not registered before the alleged infringements commenced. (Pl.
Opp., n. 4). This Court should so rule. Second, Plaintiffs’ concession also has the effect of
foreclosing these remedies entirely, because any claim for infringement of the snippets
requires a timely registration for the original (Gold Future) recording.
Plaintiffs’ theory that the Private Stock Recording is a “derivative work” of the Gold
Future Recording does not salvage these remedies. Plaintiffs seem to concede that Private
Stock owned the 1975 Private Stock Recording, and that the Private Stock registration
“inadvertently” failed to mention David Pryor’s authorship. Even if that is the case, then the
Private Stock registration may be valid because the proper owner registered the work, but
that derivative work registration does not cover the snippets from the prior, original work.
The copyright interest in the derivative Private Stock Recording extends only to any new,
original and copyrightable material added to the Gold Future Recording, which is the
original underlying work. 17 U.S.C. § 101; Stewart v. Abend, 495 U.S. 207, 223 (1990);
VMG, 2013 U.S. Dist. Lexis 184127, at *16 n.5. Ownership in that derivative work does
not extend to the pre-existing work, i.e., the Gold Future Recording.
Plaintiffs have repeatedly alleged that “no creative elements were added to the
[Private Stock] Record by Private Stock; the sound recording is a literal copy of the Record
made by Pryor at Gold Future.” (4AC, ¶ 14) The only changes made in the Private Stock
Recording were to “enhance the mix and sound quality of the original master recordings
[the Gold Future Recordings]” and to shorten the playing length. Id. None of these “added”
elements are alleged to be infringed here or have anything to do with the spoken snippets
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 16 of 18 Page ID #:1816

12
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
and thus nothing protected by the Private Stock registration is at issue here. Under these
circumstances, Plaintiffs would still need a timely registration for the Gold Future
Recording to recover statutory damages or attorney’s fees (or even sue) on the snippets
which originate in the Gold Future Recording.
Plaintiffs do not dispute the law cited by Defendants that suit cannot be brought for
infringement of the Gold Future Recording or the snippets contained therein based on the
Private Stock registration, because the owners of the two works are different.
15

As a last possible permutation, if Plaintiffs are somehow arguing that David Pryor
owned the Private Stock Recording, then the Private Stock registration was invalid because
Pryor (the supposed owner) did not register the work. Section 408 of the Copyright Act
requires that the owner of a copyright (or an exclusive right) register the work, or else the
registration is invalid. Arthur Rutenberg Homes v. Drew Homes, Inc., 29 F.3d 1529, 1532
(11th Cir. 1994) (“…only the copyright owner may apply for registration. See 17 U.S.C. §
408(a)”; if the original registration was invalid, then the assignee of that invalid registration
could not bring suit for infringement). Plaintiffs utterly ignore this on-point holding, and
instead cite to other cases which address other arguably less significant omissions in
registrations – such as naming all authors or properly designating works as works for hire.
Those are not express requirements of § 408 and are irrelevant. Plaintiffs are not entitled to
seek statutory damages or attorney’s fees based on the Private Stock registration and, if
Pryor was the owner of that recording, then no suit for infringement can be maintained as
no valid registration exists for that work.

15
See supra, 2 Nimmer & Nimmer, Nimmer on Copyright, § 7.16[B][2][c]; Salestraq Am.,
LLC v. Zyskowski, 635 F. Supp. 2d 1178, 1181 (D. Nev. 2009); Lorenzo Pryor, et al. v. Wyclef
Jean, Case No. 13-02867 DDP, Order Granting Defendants’ Motion to Dismiss (C.D. Cal. Oct.
28, 2013) (Docket 30) .
Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 17 of 18 Page ID #:1817

13
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
III. CONCLUSION
For the foregoing reasons, and those presented in the Motion, Defendants
respectfully request that the Court grant Defendants’ Motion in its entirety.
PRYOR CASHMAN LLP



Dated: July 2, 2014 By: /s/ Michael J. Niborski





Ilene S. Farkas
ifarkas@pryorcashman.com
Michael J. Niborski
mniborski@pryorcashman.com


Attorneys for Defendants
KANYE WEST, UMG RECORDINGS, INC.,
ROC-A-FELLA RECORDS, LLC, THE
ISLAND DEF JAM MUSIC GROUP,
CAROLINE DISTRIBUTION,
ELECTRONIC ARTS, INC., WARNER
BROS. ENTERTAINMENT INC., STONES
THROW RECORDS, and NBCUNIVERSAL
MEDIA, LLC

Case 2:13-cv-02449-BRO-JC Document 150 Filed 07/02/14 Page 18 of 18 Page ID #:1818